Truro ZBA grants Solomont variance while Letendre withdraws

Edward Miller

Thursday

Nov 29, 2018 at 6:00 AMDec 3, 2018 at 9:45 AM

TRURO — Two long-running zoning disputes over the denial of building permits for houses on narrow roads leading to the high bayside dunes came to a conclusion on Monday, as one plan for a 7,400-square-foot house was withdrawn and the zoning board of appeals granted a variance for the construction of a new 3,000-square-foot house.

The ZBA was spared having to make a decision in the case of Roland and Lucia Letendre, thanks to the passage of a zoning bylaw limiting the size of houses at the recent special town meeting. The Letendres sought to expand their existing 4,300-square-foot house at 10 Thornley Meadow Road to nearly double that size, but were denied a building permit earlier this year by then Building Commissioner Russell Braun on the grounds that the narrow, unpaved road did not provide adequate access. The Letendres’ plan, which originally included a swimming pool and pool house, was opposed by their neighbors, John and Yvette Dubinsky, and by other nearby residents.

The Letendres asked the ZBA to overturn Braun’s denial of the permit, or if not, to grant a special permit or variance that would allow the construction to proceed. When the Dubinskys’ lawyer, David Reid, successfully argued that the property was not eligible for a special permit, the Letendres’ lawyer, Ben Zehnder, asked for a continuance to prepare his case for granting a variance from the zoning bylaw’s frontage requirements.

Zehnder argued his case before the board on Nov. 5, but Reid was unable to attend that session because of a family emergency. So the case was continued once again, to Nov. 26.

On Nov. 13, however, special town meeting voters overwhelmingly agreed to impose new house size limits — and because the Letendres had not secured a building permit for their project before that vote, their property is subject to the new restrictions. Their 3.68-acre lot allows them “by right” to build up to a 4,472-square-foot house, and they can ask for a special permit to add up to an additional 1,000 square feet. But their plan for a 7,400-square-foot house is almost 2,000 square feet over even the extended limit.

ZBA Chair Buddy Perkel announced Monday that the Letendres and Zehnder had asked to withdraw their petitions “without prejudice,” and the board so voted.

In the second case, Susan Lewis Solomont sought either to have the ZBA overrule the building commissioner or to issue a special permit or variance for a new house at 37 Stephens Way, another narrow, unpaved road leading to the top of the dunes. Solomont’s lawyer, Sarah Turano-Flores, first argued that Solomont’s 3.8-acre lot, purchased in 1997, was legally created and buildable by right, and three members of the board — Fred Todd, John Dundas, and John Thornley — said they agreed. But Perkel and board member Susan Areson found that the lot did not have the required road frontage, thus preventing a vote to overrule the building commissioner.

The board moved on to the question of granting a special permit, but decided there were no grounds for doing so. “Is there any basis here for a special permit?” asked Perkel. “A special permit may issue when there is a nonconforming use of a structure. But there is no structure.”

The hearing thus turned on the question of whether a variance from the zoning bylaw’s frontage requirements was justified. Turano-Flores presented the case for the board’s finding that an exception to the rule should be allowed, based on the unique shape, topography and soil conditions of the property, the hardship the owner would suffer without a variance, and the absence of substantial detrimental effects on the surrounding neighborhood or derogation of the intent of the bylaw.

“If you grant a variance here, you’re going to get everybody coming in for a variance,” Perrotta said. “This lot isn’t unique enough to justify a variance. And it doesn’t satisfy the spirit of the bylaw in allowing access over an inadequate road.”

Joanne Barkan, who owns a house on Stephens Way, also opposed the variance, referring to the bitterly disputed case of the Kline house, at 27 Stephens Way.

“In the Kline case, Susan Solomont was one of the plaintiffs,” said Barkan. “She signed documents indicating that she believed Stephens Way was unsafe and that was one reason the Kline house should not be built. There’s an important contradiction there.”

During the board’s deliberations, several members noted that Solomont has been paying taxes for 20 years on a property that is assessed as a building lot, and that fact persuaded them on the hardship issue. They also agreed that the shape and slope of the lot and the presence of a nearby wetland justified a variance, and that the addition of one more house on the road would not “make a big impact up there,” as Todd put it.

“I agree with that,” said Areson. “The argument has been made that the road is unsafe, but other houses have been built up there.”

Having come to a consensus on granting the variance, the meeting was recessed to allow time to draft a decision, and during the break a loud argument erupted. Sitting in the audience, Joan Holt, who had not addressed the board during the hearing, complained that the ZBA’s finding of hardship based on property tax assessments was invalid, and that the courts had clearly rejected such reasoning. Hearing this, Perkel angrily rebuked Holt, blaming her for creating the entire situation by virtue of decisions she had participated in years ago as a member of the planning board. As the two screamed at each other, John Dubinsky intervened, telling them both to “tone it down” and behave themselves, which they did.

When the hearing resumed, the board voted unanimously to grant the variance to Solomont.